CISS-FM re the broadcast of a recorded conversation

ONTARIO REGIONAL PANEL
(CBSC Decision 03/04-0135)
R. Stanbury (Chair), H. Hassan, M. Maheu, M. Oldfield and J. Pungente.M. Ziniak, who customarily sits on this Panel, did not do so in this case since the company for whichshe works also owns CISS-FM.

THE FACTS

October 8, 2003 , CISS-FM (Toronto, also known as JACK 92.5) was planning a contest, which was to be giveaway of $92 in lottery tickets late that afternoon.  

A listener who had called in to find out the telephone number to dial at contest time learned that her brief exchange with the deejay had in fact been broadcast (apparently on a tape-delayed basis) as a part of the promotion for the contest.  She had not been identified on-air and the brief dialogue consisted merely of a confirmation of the number to call to attempt to win the tickets.  In any case, she objected to the broadcast of that recording on the grounds that her voice had been used without her consent.  In an e-mail on that date to the CBSC, she said in part (the full text of the correspondence can be found in the Appendix): 

 

On October 14, she sent a similar complaint to the CRTC, which the Commission forwarded to the CBSC in due course. After explaining the delay in responding, the Director, Regulatory and Business Affairs, for the broadcaster responded to the complainant’s letter on November 18. He wrote in part:

The CRTC has formulated regulations which must be adhered to by all radio broadcasters. These regulations include a provision dealing specifically with the on-air broadcasts of interviews and conversations. There are essentially two situations in which a radio broadcaster can broadcast an interview or conversation. The first is the more obvious one, where the person has given written or oral consent to the broadcast. The second involves listeners who call the station for the purpose of participating in a broadcast.
In your case, you were calling the station to confirm the number to call to participate in the contest ($92 in lottery tickets). Having listened to our station and heard the promotion of this contest, you may have noticed that many spots include portions of conversations with station listeners. For example, earlier in the hour in which your conversation was broadcast, a listener was commenting on how great it would be to win the potential $30 million lottery. Your conversation is another example. Your question was limited to and confirmed the phone number to call in to win.

In this way, listeners are participating in the promotions for the contest itself. As a result, various aspects of the contest include commentary from our listeners. Having heard the heavy promotion of the contest on our station, we would expect our listeners to recognize that their conversations with us may be broadcast on-the-air. However, from your complaint, it is clear that you do not believe this to be the case. For that misunderstanding, we certainly apologize. Please understand that it was never our intention to offend or embarrass you in any way. The intention is simply to involve our listeners in the running of this popular contest.
The complainant was not satisfied with the broadcaster’s explanation. She responded on November 26 with the following explanation, in part:

I, in fact have had dealings with other radio stations in Toronto and, if calling a telephone number advertised on-air, I was always greeted first by an administrative person or an actual telephone customer service representative, and THEN, passed on to the on-air personality, if I was requesting this. At this point, I was told PRIOR to any broadcast, that we were about to go on-air. Or that the call would be taped and, using time-delay technology, would be aired in a few moments. Each time I did this, I was warned and given the right to decline or withdraw from the call.
You also stated that I called the station to participate in a contest. I did not call to participate. I called to confirm a telephone number should I wish to participate in the future. I also did not call to participate in an on-air promo spot for the contest.

[.]

Expecting someone to recognize that their telephone calls may be broadcast – while first being recorded without their knowledge – is not an acceptable statement from the “Director, Regulatory and Business Affairs” for a commercial radio station bound by regulations of broadcasting and privacy laws.

[.]

The question being limited to – and confirming the number to call in when the contest was announced in the future – is simply because that is all I actually said. Not because of you editing my conversation to pertain to this subject only.

Also, [.] whether or not others have been subject to this action by your station and had no problems having their calls recorded without their knowledge or consent, and, broadcast without their consent, does not give my consent or negate my rights. This is not an acceptable explanation. Furthermore, it is my opinion that this is an obnoxious position, opinion-wise, to hold. Apparently JACK FM’s mission statement is to be rude and obnoxious – as I’ve now learned from having to listen to your station to be informed further of the “schtick” that is promoted on-air and in programming. That is great fodder for slogans, station indentity [sic] and P.R., however, it is not what must be respected, regarding broadcasting regulations, to keep one’s licensing agreement.

The fact remains that my call was taken by the on-air host, was recorded without my knowledge or consent, and was broadcast without my consent.

Since I was NOT calling to actually participate in any broadcast at this point in time, nor was my call intended to join the odds of winning any actual contest at that moment, your station has violated my rights, as well as disregarded the regulations set out by the CRTC.

THE DECISION

The Ontario Regional Panel considered the matter under the following provisions of the Canadian Association of Broadcasters (CAB) Code of Ethics and the Radio Television News Directors Association of Canada (RTNDA) Code of (Journalistic) Ethics

CAB Code of Ethics, Clause 6 – Full, Fair and Proper Comment 

RTNDA Code of (Journalistic) Ethics,

Although the CBSC does not, of course, administer the Radio Regulations, the standards established there do form a part of broadcasters' performance expectations. In the circumstances, and for reference purposes, the CBSC includes the text of section 3 of the Radio Regulations, 1986, which read in pertinent part: 

(i) the person's oral or written consent to the interview or conversation being broadcast was obtained prior to the broadcast, or

(ii) the person telephoned the station for the purpose of participating in a broadcast. 

The Ontario Regional Panel Adjudicators reviewed all of the correspondence and the brief promotional broadcast referred to above.  The Panel concludes that the broadcaster has breached the terms of Clause 6 of the CAB Code of Ethics. 

The Unauthorized Broadcast of a Caller's Voice

The Ontario Regional Panel is, of course, unable to assess the assertions by the complainant that she is a professional vocalist, that her “voice is distinguishable” and that she “do[es] not participate in frivolous unplanned public forums.”  Nor is it material to resolve that issue.  The sole responsibility of the Canadian Broadcast Standards Council is to determine whether the standards to which private broadcasters have agreed to adhere have in any way been breached by a particular broadcast. 

The unauthorized broadcast of a caller's voice is a matter that has not frequently come before any of the Council's Panels.  The rules are, however, quite straightforward.  In CJMR-AM re Voice of Croatia (CBSC Decision 92/93-0205, February 15, 1994), the Ontario Regional Panel was faced with a complaint from an individual who had left a message on a telephone answering machine at the radio station, without any expectation that it would be broadcast.  Although the complainant was not identified by name, the station did air the message, which caused him embarrassment.  In his words, “That created a lot of trouble for me with my family, my Croatian community, my work, and my life.”   The broadcaster agreed that it ought not to have aired the taped message and the Ontario Panel concluded that,

More recently, in TVA re a report broadcast on J.E. (CBSC Decision 00/01-0838, April 5, 2002), the Quebec Regional Panel dealt with the use in a news report of a recorded conversation between a representative from the Ministry of Employment and Social Assistance.  The Ministry representative had not been informed that his conversation with the reporter was being recorded.  The Panel made its decision on the basis of the foregoing provisions (as well as some other issues which are not of direct relevance to the matter at hand).  It said, among other things:

The Ontario Panel agrees with the broadcaster's representative's explanation of the circumstances in which a taped message might be broadcast, although not with his application of the principles to the matter at hand.  With respect to the principles, he said:

With respect to the application of those principles to the circumstances of this broadcast, he explained the station's rationale as follows:

It may be that many individuals have no objection to the use of their voices on air; some may even relish that opportunity.  That general principle cannot, needless to say, be determinative of the rights of any individual not to have his or her voice broadcast.  In order to ensure, however, that there is no confusion on the part of callers, any broadcaster ought to make it clear, at the time of inviting listeners to call, that the line they are calling (or, in such cases, the machine on which they are leaving a message) is one that may result in the conversation being broadcast or edited for rebroadcast.  It is hardly necessary for this Panel to suggest to broadcasters the myriad of creative or enticing ways to provide such information to a caller.  The simple bottom-line point of the Panel is that potential callers must be made aware that, in calling or leaving a voice recording, they are in effect providing their consent, even if only implied, to the broadcast of some or all of their words.  There was not, in anything the Panel has read in the correspondence or listened to on the recording of the challenged item, any such consent given in this case.  Moreover, the complainant has made it clear from the timely filing of her complaint that she did not provide any such consent.  In the circumstances, the Panel finds that the unauthorized broadcast of her words constitutes a breach of Clause 6 of the CAB Code of Ethics, although the Panel does not conclude that her privacy was in any way invaded by that broadcast, since she was not identified to the general public.  The Panel finds no breach of Article 4 of the RTNDA Code of (Journalistic) Ethics. 

Broadcaster Responsiveness 

The requirement that a broadcaster be responsive to the letter of complaint sent by a member of the public is considered by the Adjudicating Panels to be a significant part of the membership requirements of the CBSC.  Such responsiveness is an essential part of the dialogue by which the CBSC considers that matters that trouble members of the public sufficiently to compel them to write are often successfully resolved.  When accomplished in thorough and sensitive ways, such correspondence is also a way of letting the public know that broadcasters care about their audience's concerns.  In the matter at hand, the letter dealt adequately with the concerns raised by the complainant, although it did not satisfy her.  That is, after all, the condition precedent to a matter reaching a CBSC Adjudication Panel in the first place.  The Panel considers that the letter of the Director of Business and Regulatory Affairs has amply fulfilled the broadcaster's obligations in this regard in this instance.

CONTENT OF THE ANNOUNCEMENT OF THE DECISION

CISS-FM is required to: 1) announce this decision, in the following terms, once during prime time within three days following the release of this decision and once more within seven days following the release of this decision during the time period in which the lottery ticket promotion was broadcast; 2) within fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the announcements to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CISS-FM.

This decision is a public document upon its release by the Canadian Broadcast Standards Council.